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December 2, 2010

"Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual." ~Thomas Jefferson

Recently, because I possess some knowledge of U.S. Constitutional law, my mother asked me to inform my younger siblings of their rights as guaranteed by our country's Constitution, specifically those applicable when involved in an encounter with law enforcement officers and agents.

It's not that my siblings are troublesome or prone to police encounters, my mother merely believes it essential that we are all properly informed of our civil rights and prepared to handle any situation that could effect those rights. Initially, I emailed my discussion to friends and family, but thereafter realized that it would benefit the whole Fuggin world to know how to survive a police encounter in the U.S.

So whether or not you break the law, the discussion below will explain what the law is and how you can legally and properly assert your Constitutional rights through even the most nerve-racking of police encounters. It is important to note that personally, I own a small video recording device and digital audio recorder that are ready to inconspicuously record police encounters so that I have my own record of the experience. If you have such devices, or if your cellular telephone is equipped with such capabilities, you can take such steps so that you're prepared to record any police encounter.

First, when dealing with the police, remain calm, composed and respectful. By following certain guidelines, you will be prepared to handle the pressure and confusion that goes along with a police encounter. In most civilian/police encounters, the officer holds the power advantage, not only because they represent the power and authority of the state and locality, but because most people are unprepared to handle such situations.

By knowing and exercising your rights, you're a better citizen, and will be prepared to balance the power between yourself and police, who often try (and are trained) to get you to waive your rights. Respectfully asserting your rights is no guarantee against police misconduct, but showing them that you know your rights and are prepared to assert them makes them cautious about violating your rights. Remember, if you unknowingly give up your rights during a police encounter, they can no longer be used to protect you.

The rights that protect you during law enforcement encounters come directly from the Bill of Rights of the U.S. Constitution, specifically the Fourth, Fifth, and Sixth Amendment. The Fourth Amendment states, in part, that "The right or the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." The Fifth Amendment states, in part, "No person shall be...compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law..." The Sixth Amendment states, in party, "In all criminal prosecutions, the accused shall enjoy the right to...have the Assistance of Counsel for his defense."

Simply put, the number of arrests an officer makes is a major factor used to determine his job performance, and police officers know that the easiest way to make arrests is to find people in possession of illegal drugs. To make one drug arrest, an officer generally has to search ten people. This means that nine innocent people will likely endure the inconvenience and humiliation of a police search so that one law-breaker can be arrested. In some officers’ minds, the nine searches that turned up nothing are easily justified—especially if those people willingly consented to warrantless search requests. So let's discuss when officers can legally conduct a warrantless search.

When Are the Police Allowed to Search Your Car?

Because automobiles are mobile, it is reasonable to assume that they would qualify as an exception to the warrant clause of the Fourth Amendment. The U.S. Supreme Court has generally ruled that the police do NOT need a warrant to search your car during a traffic stop if they have probable cause to believe that something illegal is present. Although there are important exceptions, the precise meaning of "probable cause" means that police must have some evidence to believe that criminal activity is occurring to search your car. A mere hunch by the officer is not enough to search or arrest you. Before searching, the officer must observe something more tangible - "a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person's belief that certain facts are probably true"

Most avoidable police searches occur not because police have probable cause, but because most people get tricked or intimidated into waiving their rights by consenting to search requests. Giving an officer consent to search automatically makes the search legal in the eyes of the law. In most states, officers are NOT required to let you know of your right to refuse to consent to a search. If you are pulled over, do not try to figure out if the officer has probable cause. If the officer asks if he can look, then he probably does not have probable cause. DO NOT CONSENT and verbally object if the officer physically forces his way into the car. If an officer searches you illegally, and finds contraband despite your refusal to consent, your attorney may thereafter be able to file a motion to suppress the evidence resulting from the illegal search or throw out the evidence in court proceedings. If the judge agrees that there was a violation of rights, he may throw out the evidence and dismiss the charges. If you consent, you give up this possible outcome, so for your own sake, DO NOT CONSENT!

When Are the Police Allowed To Search Your Person?

Based on "reasonable suspicion that criminal activity is afoot," officers are legally permitted to briefly detain a person and frisk the outside of their clothing to check for guns and knives. Legally, this frisk is only permitted if they have a reasonable and articulable suspicion that the person detained may be “armed and dangerous.” Stand your ground and be prepared to assert your rights. This is called a "Terry Stop" and may permit the officers to pat you down and search your pockets. It is never wrong to calmly verbalize that you DO NOT CONSENT to a search.

When a search for weapons is authorized, the procedure is known as a “Terry Stop and Frisk." To have reasonable suspicion that would justify a stop, police must be able to point to “specific and articulable facts” that would indicate to a reasonable person that a crime has been, is being, or is about to be committed. Reasonable suspicion depends on the “totality of the circumstances”, and can result from a combination of facts, each of which could by itself be innocuous.

The search of the suspect’s outer garments, also known as a pat down, must be limited to what is necessary to discover weapons; however, pursuant to the “plain feel” doctrine, police may seize contraband discovered in the course of a frisk, but only if the contraband’s identity is immediately apparent by plain feel without the need for further inspection. In some states, the officer can only seize the item if, by plain feel, he/she can tell that it is a weapon. Furthermore, in some jurisdictions, persons detained under the doctrine of Terry must identify themselves to police upon request.

When asked to show your identification to a police officer (on the street or as a passenger, not driving a vehicle), although it is a common knee-jerk reaction to give an officer your ID, the fact is that you are not necessarily required to identify yourself to an officer on the street. The law about this differs from state to state, therefore it may be required to check the law in an individual state for specifics.

In all situations, keep in mind that it is not helpful to talk back or raise your voice to a police officer. There is nothing to gain by escalating the hostility, so remain calm and respectful when asserting your rights. If the officer will not allow you to leave and starts a pat down, you have nothing to lose by verbalizing that you DO NOT CONSENT to a search of your person or bags. Only verbally refuse, and NEVER physically resist. Just touching an officer can land you a felony charge, and NEVER run from the officer.

If you are arrested, an officer may search your person. Do not engage in conversation after an arrest. An officer is not your advocate or friend in such a situation. Their job is to find, arrest, and help prosecute you. You ARE NOT required to answer their questions without the presence of a lawyer.

If you have a situation with officers violating your rights, do not resist them. Verbally assert your rights and your refusal to consent, and as soon as you can make a record of the violation by writing down everything that occurred, including witness names, officer names and badge numbers, do so. File a misconduct report at the police station and contact an attorney or local American Civil Liberties Union (ACLU) office for advice.

When Are the Police Allowed to Search Your Home?

The U.S. Supreme Court has ruled that the home (often including the home of another if you are an overnight guest, as well as a hotel room) is entitled to maximum protection against involuntary searches and seizures. Specifically, the Court has ruled that even if an officer has probable cause to believe that criminal activity is occurring inside your home, with a few exceptions, he may NOT ENTER without a search warrant. In many instances, without thinking, people invite the police into their homes. Consenting to a police officer's request to enter or search your home can automatically make the search legal and other findings legal. If an officer is legally invited into your home, any illegal item seen in plain sight may be confiscated and used as evidence to support an arrest and charges.

For example, let's take the hypothetical instance of an underage party where drinking and drug use may be present. If you were the resident, it's advisable to be mindful of guests and the entrances to the residence. Often officers will gain access to the residence through an inconspicuous entryway and the consent of a guest. Be attentive to greeting guests at the entrance and minimizing entry points, and use the peephole for your own safety.

Upon seeing the officers knocking at your door, quiet the party, compose yourself, and greet the police outside the door, shutting it behind you. Respectfully greet them and apologize for the noise. If they try to force themselves into the home, explain that you cannot let them in without a search warrant. If they get in the home without your consent, assertively state that you are the resident at the address and that you do not consent to them being inside the premises without a warrant and politely ask them to talk to you out front. Explain that your guests have no authority to consent to their entrance. If they do not leave, explain that they are in violation of the warrant requirement of the 4th Amendment and that you will report them for misconduct. Do not let them scare you by saying that they will return with a warrant. Obtaining a search warrant is not an easy process, and usually involves a fact review by a Judge. You should be knowledgeable of the exceptions to the search warrant requirement, so that you are prepared in an instance when a warrant is NOT required.

Exceptions to the Search Warrant Requirement

There are a few situations when your Constitutional protection against warrantless searches do NOT apply. The first three are common sense. Be aware that airport security personnel do NOT need a warrant or probable cause to search you or your belongings before boarding commercial aircraft. This also holds true at certain state and federal checkpoints, like police stations, court houses and international borders crossings. Lastly, private security personnel generally have a right to search you as a condition to entry to private property (sports arenas, concerts, bars and clubs). In such cases, it is your choice whether entry (plane, border, or private property) is worth submitting to a search. Keep in mind that private security can turn over any items found on you over to the police, so if security ever tries to search you after you go through the requisite search, do NOT CONSENT. Insist upon leaving the premises immediately or talking to an attorney.

Usually the police will not arrest you for a routine traffic stop (although they usually can) or refusal to consent to a search, but if you are formally arrested, police may search you without a warrant under the search incident to lawful arrest exception. They may also conduct a limited search of your grab area, which can include your car. In addition to this, if arrested during a traffic stop, your car can be impounded, and the impounded automobiles of persons under arrest may be searched for inventory purposes without a warrant.

There is also an exception for emergency situations, or exigent circumstances as they are referred to in the Criminal Procedure context. This is an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect, or destruction of evidence. There is no ready test for determining whether such circumstances exist, and in each case the extraordinary situation must be measured by the facts known by officials at that time (this is a subjective standard that officers can use to explain their way out of a warrant after the fact). Exigent circumstances may make a warrantless search constitutional if probable cause exists to back up the belief. The existence of exigent circumstances is a mixed question of law and fact, and has been the exception more frequently used to justify warrantless searches. Keep this exception in mind regarding incidents such as if an officer says they smell marijuana, as it may be used to justify a following search to preserve evidence. In those situations, do not consent or admit to anything.

A traffic stop is, for practical purposes, a Terry stop; for the duration of a stop, driver and passengers are “seized” within the meaning of the Fourth Amendment. In the interest of officer safety, drivers and passengers may be ordered out of the vehicle without additional justification by the officer. Drivers and passengers may be searched for weapons upon reasonable suspicion they are armed and dangerous. If police reasonably suspect that the driver or any of the occupants may be armed and dangerous or that the vehicle may contain a weapon to which an occupant may gain access, police may perform a protective search of the passenger compartment. Without this reasonable suspicious of weapons, a warrant, probable cause, or the driver’s consent, police may not search the vehicle, but under the “plain view” doctrine, which would allow them to seize and use as evidence weapons or contraband that are visible from outside the vehicle.

Keep in mind that an officer's "reasonable suspicion" (as well as more stringent standard for probable cause) must be articulated in court to justify the search and any resulting seizures. If they do not justify a belief that you are armed and dangerous, or a belief that there is weapons in the vehicle, or substantiate probable cause that another crime was occurring, all resulting findings can be thrown out of court. Since traffic stops are where over 50% of police encounters occur, it is necessary to keep in mind some other guidelines and tips when being pulled over (print them and put them in your car if necessary):

1. Pull to the side of the road, put on your hazard lights, assure that you are buckled up securely, roll down your window only part way, approximately 3 inches (so the officer cannot poke his whole head in and sniff around), shut off the engine and put your keys in your pocket, (set your recording device if ready) and put your palms face down on the top of your steering wheel as the officer approaches to show your unarmed.

2. Calmly ask why you were pulled over as the officer approaches your window. If asked by the officer if you know the reason you were pulled over, do not incriminate yourself by even guessing what you did wrong. Say you do not know, and calmly ask the officer again why you were pulled over. Answering this question in any affirmative way could result in waiving your right to 5th Amendment protection against self incrimination. There is no need or requirement that you confess anything to the officer. Say as little as possible in your encounter with the officer. Anything you say can be used against you, and in this day and age, many traffic officers are constantly recording verbal communication from a recording device on their person.

3. If asked questions, be calm, and respond to questions with questions, and be sure to be assertive (and repetitive) in your refusal to consent to a line of questioning. Never lie to the police when questioned. If the officer asks you a question that you know the answer to but do not want to answer, you DO NOT have to answer. You're better off not answering than lying and have the officer arrest you or use it against you later. Remember, you do not have to tell them anything.

4. If asked to roll down your window all the way, you should do so. If asked to get out of the car, you should do so. NOTE, if asked to get out of the car, roll up your window, assure the car keys are on your person, lock your car, and shut the door firmly behind you. Leaving the car open makes it an easier target for the officer to search. If you have keyless entry you can just lock the keys in the car.

5. If asked if you mind if the officer conducts a search of your vehicle, you must be assertive in verbally stating that you "do not consent to any search of the vehicle (or your person, your bags, whatever it may be)." By not being adequately assertive, you could be giving up your 4th Amendment protection against unwarranted searches and seizures. After stepping out of the car, and locking it, keep your keys in your pocket. Do not give the officer your keys. Doing so may constitute consent to a search. Respond with this exact phrase, "I do not consent to any searches. Are you detaining us officer, or are we free to go now?" Remain courteous but do not be intimidated. If it is not your car, repeat that so-and-so would also "not consent to any searches." If the officer just starts looking around, once again, "I DO NOT CONSENT TO ANY SEARCHES, OFFICER." Calmly and with manners, let it be known.

6. Your rights do not disappear just because an officer threatens to call in sniffer dogs. Refusing a search does not give the officer a legal right to search or unreasonably detain you. Stay strong and repeat that you do not consent to ANY SEARCH. If an officer calls in K-9 units, any delay in their arrival can constitute an unreasonable detention in violation of your 4th Amendment rights. Officers will mention calling the dogs as a general a intimidation tactic. Remain vigilant and confident and continue to voice that "YOU DO NOT CONSENT TO ANY SEARCH." Remember so long as you do not consent, and do not lie, it does not matter at what point contraband is found. Remain vigilant in asserting your rights and maintaining a record of the incident, and let your attorney worry about the rest later. Just don't you fuggin consent.

7. Graciously accept a traffic citation. Never complain about a ticket, especially when you know how much worse a traffic stop can become. Never let an officer try to convince you that he will rip up your ticket if you consent to a search. If this happens, just ask for the ticket because you can always contest it later in traffic court, and being in traffic court is always better than criminal court.

8. If somehow, contraband is found, stay calm, and DO NOT DEFEND YOURSELF. Say nothing but, "I WANT TO SPEAK TO AN ATTORNEY. I WILL NOT SPEAK WITHOUT AN ATTORNEY. I ASSERT MY RIGHT TO REMAIN SILENT" - Say nothing else but those phrases.